You are on page 1of 7

ANNULMENT, DIVORCE AND LEGAL

SEPARATION IN THE PHILIPPINES:


QUESTIONS AND ANSWERS
Annulment and Legal Separation

There are many questions relating to annulment and divorce in


the Philippines, and many of the concerns of our readers had already
been addressed in previous articles. Nevertheless, to consolidate
everything for everyones easy reference, here are the FAQs on
annulment and divorce in the Philippines:
Is divorce allowed under Philippine laws?
No, divorce is not allowed in the Philippines. However, there are certain
instances wherein the divorce secured abroad by the foreigner-spouse,
and even by former Filipinos, are recognized under Philippine laws.
More discussion here (Judicial Recognition of a Foreign Divorce Decree).
Would it make any difference if I marry abroad where divorce
is allowed?
No. Filipinos are covered by this prohibition based on the nationality
principle, regardless of wherever they get married (and regardless
where they get a decree of divorce). Discussions relating to Overseas
Filipinos or OFWs are transferred in Part V.
Is annulment different from a declaration of nullity of
marriage?
Yes. In essence, annulment applies to a marriage that is considered
valid, but there are grounds to nullify it. A declaration of nullity of
marriage, on the other hand, applies to marriages that are void or
invalid from the very beginning. In other words, it was never valid in
the first place.
Also, an action for annulment of voidable marriages may prescribe,
while an action for declaration of nullity of marriage does not prescribe.

So, if a marriage is void from the very beginning (void ab


initio), theres no need to file anything in court?
For purposes of remarriage, there must be a court order declaring the
marriage as null and void. Entering into a subsequent marriage without
such court declaration means that: (a) the subsequent marriage is
void; and (b) the parties open themselves to a possible charge of
bigamy.
What if no marriage certificate could be found?
Justice Sempio-Dy, in the Handbook of on the Family Code of the
Philippines (p. 26, 1997 reprint), says: The marriage certificate is not
an essential or formal requisite of marriage without which the marriage
will be void. An oral marriage is, therefore, valid, and failure of a party
to sign the marriage certificate or the omission of the solemnizing
officer to send a copy of the marriage certificate to the proper local
civil registrar, does not invalidate the marriage. Also the mere fact that
no record of marriage can be found, does not invalidate the marriage
provided all the requisites for its validity are present. (Citations
omitted)
Can I file a petition (annulment or declaration of absolute
nullity of marriage) even if I am in a foreign country?
Yes, the rules recognize and allow the filing of the petition by Filipinos
who are overseas.
What are the grounds for annulment?
1. Lack of parental consent in certain cases. If a party is 18 years or
over, but below 21, and the marriage was solemnized without the
consent of the parents/guardian. However, the marriage is validated if,
upon reaching 21, the spouses freely cohabited with the other and
both lived together as husband and wife.
2. Insanity. A marriage may be annulled if, at the time of marriage,
either party was of unsound mind, unless such party after coming to
reason, freely cohabited with the other as husband and wife.
3. Fraud. The consent of either party was obtained by fraud, unless
such party afterwards, with full knowledge of the facts constituting the
fraud, freely cohabited with the other as husband and wife. Fraud

includes: (i) non-disclosure of a previous conviction by final judgment


of the other party of a crime involving moral turpitude; (ii) concealment
by the wife of the fact that at the time of the marriage, she was
pregnant by a man other than her husband; (iii) concealment of
sexually transmissible disease or STD, regardless of its nature, existing
at the time of the marriage; or (iv) concealment of drug addiction,
habitual alcoholism or homosexuality or lesbianism existing at the time
of the marriage. However, no other misrepresentation or deceit as to
character, health, rank, fortune or chastity shall constitute such fraud
as will give grounds for action for the annulment of marriage.
4. Force, intimidation or undue influence. If the consent of either party
was obtained by any of these means, except in cases wherein the
force, intimidation or undue influence having disappeared or ceased,
the complaining party thereafter freely cohabited with the other as
husband and wife.
5. Impotence. At the time of marriage, either party was physically
incapable of consummating the marriage with the other, and such
incapacity continues and appears to be incurable. Impotence is
different from being infertile.
6. STD. If, at the time of marriage, either party was afflicted with a
sexually-transmissible disease found to be serious and appears to be
incurable. If the STD is not serious or is curable, it may still constitute
fraud (see No. 3 above).
What if a spouse discovers that his/her spouse is a homosexual
or is violent, can he/she ask for annulment?
Homosexuality or physical violence, by themselves, are not sufficient
to nullify a marriage. At the very least, however, these grounds may be
used as basis for legal separation.
How is legal separation different from annulment?
The basic difference is this in legal separation, the spouses are still
considered married to each other, and, thus, may not remarry.
Is legal separation faster than annulment?
Not necessarily. The petitioner in a legal separation, just like in an
annulment, is still required to prove the allegations contained in the

petition. More important is the mandatory 6-month cooling off period


in legal separation cases. This is not required in annulment or
declaration of nullity cases. The court is required to schedule the pretrial conference not earlier than six (6) months from the filing of the
petition. This period is meant to give the spouses an opportunity for
reconciliation.
What are the grounds for legal separation?
1. Repeated physical violence or grossly abusive conduct directed
against the petitioner, a common child, or a child of the petitioner.
2. Physical violence or moral pressure to compel the petitioner to
change religious or political affiliation.
3. Attempt of respondent to corrupt or induce the petitioner, a common
child, or a child of the petitioner, to engage in prostitution, or
connivance in such corruption or inducement.
4. Final judgment sentencing the respondent to imprisonment of more
than six years, even if pardoned.
5. Drug addiction or habitual alcoholism of the respondent.
6. Lesbianism or homosexuality of the respondent.
7. Contracting by the respondent of a subsequent bigamous marriage,
whether in the Philippines or abroad.
8. Sexual infidelity or perversion.
9. Attempt by the respondent against the life of the petitioner.
10. Abandonment of petitioner by respondent without justifiable cause
for more than one year.
The term child shall include a child by nature or by adoption.
Should I file a petition for legal separation, can I use my own
sexual infidelity as a ground?
It is interesting to note that among the grounds for legal separation, as
listed above, only sexual infidelity or perversion is not qualified by

the phrase of the respondent or by respondent. This may give the


impression that the sexual infidelity of the petitioner, or the one who
filed the petition, may be used as a ground in legal separation. We
must consider, however, that legal separation is filed by the innocent
spouse or the aggrieved party against the guilty spouse.
What happens if after learning that your husband (or wife) is
unfaithful (No. 8 above), you still co-habitate with him/her?
This may be construed as condonation, which is a defense in actions
for legal separation. In addition to condonation, the following are the
defenses in legal separation:
1.
Consent.
2. Connivance (in the commission of the offense or act constituting the
ground
for
legal
separation).
3. Mutual guilt (both parties have given ground for legal separation).
4.
Collusion
(to
obtain
decree
of
legal
separation).
5. Prescription (5 years from the occurence of the cause for legal
separation).
If youre separated from your spouse for 4 years, is that a
sufficient ground for annulment?
No. De facto separation is not a ground for annulment. However, the
absence of 2 or 4 years, depending on the circumstances, may be
enough to ask the court for a declaration ofpresumptive death of the
absent spouse, in which case the petitioner may again re-marry.
SeeCan someone remarry without going to court due to absence or
separation?
What are the grounds for declaration of nullity of marriage?
1. Minority (those contracted by any party below 18 years of age even
with the consent of parents or guardians).
2. Lack of authority of solemnizing officer (those solemnized by any
person not legally authorized to perform marriages, unless such
marriages were contracted with either or both parties believing in good
faith that the solemnizing officer had the legal authority to do so).
3. Absence of marriage license (except in certain cases).

4. Bigamous or polygamous marriages (except in cases where the


other spouse is declared as presumptively dead).
5. Mistake in identity (those contracted through mistake of one
contracting party as to the identity of the other).
6. After securing a judgement of annulment or of asolute nullity of
mariage, the parties, before entering into the subsequent marriage,
failed to record with the appropriate registry the: (i) partition and
distribute the properties of the first marriage; and (ii) delivery of the
childrens presumptive legitime.
7. Incestous marriages (between ascendants and descendants of any
degree, between brothers and sisters, whether of the full or half blood).
8. Void by reason of public policy. Marriages between (i) collateral
blood relatives whether legitimate or illegitimate, up to the fourth civil
degree; (ii) step-parents and step-children; (iii) parents-in-law and
children-in-law; (iv) adopting parent and the adopted child; (v)
surviving spouse of the adopting parent and the adopted child; (vi)
surviving spouse of the adopted child and the adopter; (vii) an adopted
child and a legitimate child of the adopter; (viii) adopted children of the
same adopter; and (ix) parties where one, with the intention to marry
the other, killed that other persons spouse, or his or her own spouse.
9. Psychological Incapacity. Psychological incapacity, which a ground
for annulment of marriage, contemplates downright incapacity or
inability to take cognizance of and to assume the basic marital
obligations; not a mere refusal, neglect or difficulty, much less, ill will,
on the part of the errant spouse. Irreconcilable differences, conflicting
personalities, emotional immaturity and irresponsibility, physical
abuse, habitual alcoholism, sexual infidelity or perversion, and
abandonment, by themselves, also do not warrant a finding of
psychological incapacity. We already discussed the guidelines and
illustrations of
psychological
incapacity,
including
a
case
involving habitual lying, as well as the steps and procedure in filing a
petition.
Please note, however, that there are still other grounds to declare a
marriage as null and void.
Browse through the comments below to check if your questions are
similar to that of others. Other common issues are consolidated in Part

II, Part III, Part IV, Part V, Costs in seeking an Annulment, and other
related posts. You can check the Related Posts at the bottom of each
post.